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State v. Taylor11/14/2005
details, we are able to see that the statements set forth in the affidavit were Trooper Caplinger's alone. Therefore, the fact that Judge Adkins merely transcribed Trooper Caplinger's statements on the affidavit did not make him a non-neutral magistrate.
{ } Finally, Appellant argues that the fact that Judge Adkins went to the hospital, where he could have potentially come into contact with Appellant, makes him non-neutral. Appellant makes the assumption that Judge Adkins, while reviewing the facts with Trooper Caplinger, was in view of the Appellant at the hospital, thus potentially making him a witness to Appellant's condition. There is no evidence presented, however, indicating that Judge Adkins was ever in a position to be in actual visual contract with Appellant at the hospital or elsewhere. In fact, standard protocol for situations such as the one at issue is that the judge arrives at the hospital and reports to the nurses' station. The requesting officer meets with him there and reviews the facts for the search warrant application so that the judge can make a determination as to whether sufficient evidence exists to establish probable cause for the issuance of the search warrant. While this is occurring, the defendant is in a separate room where the blood specimen is to be drawn. At no time is the judge in actual view of the defendant to observe his condition.
{ } In the case sub judice, there is no evidence indicating that Judge Adkins ever came into contact with Appellant, nor that he participated in any way in the execution of the warrant. As such, in this respect, he is presumed to be neutral and detached.
{ } Therefore, because Judge Adkins' determination of probable cause was soundly warranted in this case, and because our review of his actions shows that he remained a neutral and detached magistrate at all points at issue, we affirm the decision of the Circleville Municipal Court.
JUDGMENT AFFIRMED.
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED and that the Appellee recover of Appellant costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Circleville Municipal Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Ohio Supreme Court an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Ohio Supreme Court in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Ohio Supreme Court. Additionally, if the Ohio Supreme Court dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Exceptions.
Abele, P.J. & Kline, J.: Concur in Judgment and Opinion.
Matthew W. McFarland, Judge
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